Air Liquide America v. UCBR (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Air Liquide America, Petitioner v. Unemployment Compensation Board of Review, Respondent BEFORE: : : : : : : : : No. 1863 C.D. 2007 Submitted: February 8, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: April 18, 2008 Air Liquide America (Employer) petitions for review of an adjudication of the Unemployment Compensation Board of Review granting Angel R. Garcia (Claimant) unemployment compensation benefits. In doing so, the Board reversed the decision of the Referee that Claimant was ineligible under Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).1 Concluding that Claimant s accident with Employer s tractor trailer resulted from negligence, not willful misconduct, we affirm the Board. 1 Section 402(e) provides in pertinent part, that an employee shall not be eligible for benefits for any week in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work ¦. 43 P.S. §802(e). Claimant was employed full-time by Employer as a tractor trailer truck driver from July 18, 2005, through May 22, 2007, when he was discharged as a result of an accident that damaged Employer s tractor trailer. A vehicle in front of Claimant stopped suddenly and unexpectedly, and Claimant was unable to stop Employer s truck, causing property damage in excess of $13,000. In accordance with Employer s policy, Claimant reported the accident immediately and completed an accident notification form. Claimant was discharged because Employer found the accident to be a major preventable accident 2 that Claimant failed to prevent, as expected by Employer. Claimant applied for unemployment compensation benefits, and they were denied by the UC Service Center pursuant to Section 402(e) of the Law. Claimant appealed, and a hearing before a Referee followed. Both Claimant and Employer s witnesses testified. The Referee affirmed the UC Service Center s denial of benefits, relying upon the citations issued by the Northern Berks Regional Police Department that Claimant was following the vehicle in front too closely and had operated the tractor trailer in a careless manner. The Referee also found that Employer satisfied its burden of showing that Employer had a policy that employee must do everything reasonable to avoid a motor vehicle accident; that Claimant was 2 A preventable accident is defined in Employer s Driver s Handbook, as one where the company driver did not do all he could have reasonably done to keep the accident from happening; without regard to what mistakes any other person made in the accident. This is a higher standard than legal liability; because you are considered a professional you are expected to avoid all accidents. R.R. 49a (emphasis added). A major preventable accident is a category based on an accident with a fatality, serious injury, or extensive damage to property. Id. A driver involved in a major preventable accident will be suspended without pay pending a full investigation and may be discharged if there is a serious violation of law or company rules. Id. 2 aware of the policy; and that Claimant violated the policy. The Referee concluded the burden of proof then shifted to Claimant to show good cause for violating Employer s policy, and Claimant did not do so. On appeal, the Board reversed. The Board found that the record did not support a finding that Claimant committed willful misconduct. Crediting the testimony of Claimant, the Board found that Claimant had maintained a safe distance behind the vehicle in front of him and did not intentionally cause the accident in question. Claimant was reaching for his water bottle that had fallen into the console area of the truck, and Claimant believed he could retrieve it carefully. However, the car in front of him had come to a quick stop, causing Claimant s truck to hit the rear of that vehicle. The Board also found that Claimant did not intentionally violate Employer s rules. Without the element of intent, the Board held that a finding of willful misconduct could not be made. Thus, the Board found the Claimant eligible for benefits. On appeal,3 Employer presents two issues for our consideration. First, Employer contends that the Board erred in concluding that Claimant s actions did not constitute willful misconduct because Claimant acted in intentional disregard of Employer s safety standards. Second, Employer contends that Claimant did not show that he had good cause for violating Employer s reasonable work rules. The question of whether certain activity constitutes willful misconduct, is a question of law subject to plenary review. Temple University v. Unemployment Compensation Board of Review, 565 Pa. 178, 182 n.1, 772 A.2d 416, 3 Our scope of review in unemployment compensation cases is limited to determining whether constitutional rights were violated, whether errors of law were committed, or whether necessary findings of fact are supported by substantial evidence. Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 599, 827 A.2d 422, 425 (2003). 3 418 n. 1 (2001). In Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 83-84, 351 A.2d 631, 632 (1976), the Supreme Court defined willful misconduct as: an act of wanton or willful disregard of the employer s interest, a deliberate violation of the employer s rules, a disregard of standards of behavior which the employer has a right to expect of an employee, or negligence indicating an intentional disregard of the employer s interest or of the employe s duties and obligations to the employer. The employer bears the burden of proving willful misconduct in order to disqualify a claimant from receiving benefits. Kelly v. Unemployment Compensation Board of Review, 747 A.2d 436 (Pa. Cmwlth. 2000). Employer argues that it satisfied its burden of proof. It established the existence and reasonableness of its work rule requiring employees to do everything reasonable to avoid major preventable accidents, and it contends that its evidence established that Claimant blatantly disregarded the standards of behavior Employer expects of its drivers. According to Employer, Claimant intentionally took his eyes off the road in order to reach for the water bottle and intentionally drove too close to the vehicle in front of him. Employer asserts that these actions exhibited an intentional disregard of Employer s safety standards. As such, Employer contends this matter is controlled by this Court s decision in Heitczman v. Unemployment Compensation Board of Review, 638 A.2d 461 (Pa. Cmwlth. 1994). 4 4 Employer also invokes United Refining Co. v. Unemployment Compensation Board of Review, 661 A.2d 520 (Pa. Cmwlth. 1995), asserting that an employee s inadvertent unintentional violation of an employer s work rule constitutes willful misconduct if those actions jeopardize an employer s effective operations or place the public at risk. Id. at 523. Our Supreme Court, however, declined to adopt such a public policy exception in Grieb v. Unemployment Compensation Board of Review, 573 Pa. 594, 603, 827 A.2d 422, 427 (2003), noting that the General Assembly (Footnote continued on the next page . . . ) 4 In Heitczman, the employer s policy required its drivers to exit and walk around their vehicles before backing up to ensure their path of travel was clear of any obstructions. The claimant did not follow this work rule and an accident resulted. The driver asserted his actions did not constitute willful misconduct because his accident was not intentional but negligent. This Court disagreed. We found that the driver s conduct was not negligent but, rather, showed disobedience of a direct instruction. Id. at 464. The Board counters that Heitczman is not dispositive. It contends that Claimant did not violate a specific, non-discretionary instruction, as was the case in Heitczman. Rather, Claimant was discharged for his negligent operation of Employer s vehicle; as such, the matter is controlled by Myers v. Unemployment Compensation Board of Review, 533 Pa. 373, 625 A.2d 622 (1993). We agree. In Myers, the claimant, a truck driver, was involved in three traffic accidents while driving his employer s tractor trailer. The referee concluded that the claimant was discharged for willful misconduct and was not entitled to unemployment compensation benefits. The Board and this Court affirmed. On appeal, our Supreme Court reversed, explaining that an employer cannot demonstrate willful misconduct by merely showing that an employee committed a negligent act, but instead must present evidence indicating that the conduct was of an intentional and deliberate nature. Id. at 378, 625 A.2d at 625 (quoting Bucher v. Unemployment Compensation Board of Review, 463 A.2d 1241, 1243 (Pa. Cmwlth. 1983)). The Supreme Court further (continued . . . ) did not provide such a public policy exception in Section 402. Because Grieb effectively abrogated our holding in United Refining Co., Employer s public policy argument is without merit. 5 explained that negligence and willful misconduct are not interchangeable concepts. It stated that [m]ere negligence does not rise to the level of willful misconduct without the additional element of an intentional disregard of the employer s interests. Id. at 379 n.3, 625 A.2d at 626, n.3. (emphasis in original.) An employee s conduct does not rise to the level of willful misconduct unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer s interest or of the employee s duties and obligations to the employer. Id. at 378, 625 A.2d at 625 (quoting Coleman v. Unemployment Compensation Board of Review, 407 A.2d 130, 131-32 (Pa. Cmwlth. 1979)). In Myers, the employer did not present any competent evidence to show that the claimant intentionally disregarded the employer s interest or the claimant s duties to the employer; thus, the Court granted benefits. In the case before us, Employer has not presented any evidence that Claimant s conduct relating to Employer s work rule against preventable accidents was of an intentional and deliberate nature or of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer s interest or of the employee s duties and obligations to the employer. Myers, 533 Pa. at 378, 625 A.2d at 625. Claimant testified that he had maintained a good six, seven seconds distance from the vehicle ahead, close to the recommended seven or eight seconds. R.R. 38a. In the split second that he looked down to retrieve his water bottle, the vehicle in front of him suddenly stopped. R.R. 38a. Although Claimant slammed on the brakes, he was unable to prevent the accident. The Board accepted as credible Claimant s testimony that he was keeping a safe distance behind the vehicle in front of him and did not 6 intentionally cause the accident in question. Thus, under Myers, the evidence was insufficient to establish that Claimant s conduct rose to the level of willful misconduct.5 Accordingly, the decision of the Board is affirmed. ______________________________ MARY HANNAH LEAVITT, Judge 5 The Board found that Claimant showed good cause for his failure to comply with the work rule, which finding is challenged by Employer. Where a claimant is discharged for a work rule violation, the employer has the burden to show the existence of a work rule and that the claimant violated the rule. Caterpillar, Inc. v. Unemployment Compensation Board of Review, 550 Pa. 115, 123, 703 A.2d 452, 456 (1997). Once the employer establishes those elements, the burden then shifts to the claimant to show that he had good cause to violate the rule. ATM Corp. of America v. Unemployment Compensation Board of Review, 892 A.2d 859, 865 (Pa. Cmwlth. 2006). Because Employer did not prove intentional violation of a work rule, Claimant had no obligation to demonstrate good cause. 7 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Air Liquide America, Petitioner v. Unemployment Compensation Board of Review, Respondent : : : : : : : : No. 1863 C.D. 2007 ORDER AND NOW, this 18th day of April, 2008, the order of the Unemployment Compensation Board of Review dated July 25, 2007, in the above captioned matter is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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